APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
J. BOWMAN, Judge, presiding.
MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant was indicted on January 19, 1978, for the offense of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1). Prior to trial, defendant filed a motion to suppress certain statements allegedly made by defendant to the police. Following a hearing thereon, the trial court suppressed two of the three statements in issue. A bench trial followed and defendant was found guilty and sentenced to a six-year period of imprisonment. Defendant appeals from that conviction, claiming that his second inculpatory statement to the police was improperly admitted and considered by the trial court since it was the product of an initial inculpatory statement obtained by unconstitutional means.
Glen Ellyn police officer Craig Casino testified that in the early morning hours of December 31, 1977, he was investigating a burglary at the Kohl's Food Store in Glen Ellyn. He was standing on the roof of the store peering through a hole in the roof when he first observed defendant inside the store. Casino testified that he then climbed down into the store, placed defendant under arrest for burglary and advised defendant of his constitutional rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. At that time, Officer Casino asked defendant if anyone else was inside the store and defendant purportedly replied that "he was alone in the situation."
Shortly thereafter, Sergeant Clouse of the Glen Ellyn Police Department arrived at the scene and he instructed Officer Casino to admonish defendant as to his constitutional rights. Both Sergeant Clouse and Officer Casino testified that Casino then read defendant his Miranda rights. Sergeant Clouse then asked defendant if there was anyone else in the store and defendant replied, "I am in here alone" or "I am alone" or "I am in this alone."
After arriving at the Glen Ellyn police station, Officer Casino testified that he again advised defendant of his constitutional rights and asked him who was involved with him in the burglary of the Kohl's Food Store. Defendant purportedly replied, "If I tell you * * * somebody else was involved with me, they promised that they will kill my kids * * *."
The trial court made the following rulings with regard to defendant's motion to suppress. The first statement made to Officer Casino was suppressed because the trial court was not convinced that Miranda warnings were, in fact, given prior to the statement being made. The second statement was not suppressed since the trial court found that it was made voluntarily after defendant had been given proper Miranda warnings. The third statement, which was made at the police station, was suppressed because the trial court found that it was made after defendant had indicated a desire to stop questioning.
The sole issue on appeal is whether the trial court erred in refusing to suppress defendant's second statement to the police and, if so, whether such error was harmless beyond a reasonable doubt.
Citing Westover v. United States (1966), 384 U.S. 494, 16 L.Ed.2d 735, 86 S.Ct. 1638, defendant argues that the second statement to the police should have been suppressed since it clearly was the unattenuated fruit of his first statement which was obtained illegally. The only Illinois case on point cited by defendant is People v. Raddatz (1968), 91 Ill. App.2d 425, 235 N.E.2d 353. In Raddatz, the police subjected the defendant to custodial interrogation without giving him proper Miranda warnings, and as a result of that improper questioning, an oral confession was obtained. Shortly thereafter, the defendant gave a written confession to an assistant state's attorney after being advised of his constitutional rights. Relying on Westover, the trial court suppressed both the oral and the written confession, and that order was affirmed by the appellate court. 91 Ill. App.2d 425, 235 N.E.2d 353.
While the Raddatz decision has been followed (see, e.g., People v. Riszowski (1974), 22 Ill. App.3d 741, 318 N.E.2d 10), it was expressly distinguished in People v. Andrus (1976), 37 Ill. App.3d 533, 346 N.E.2d 435, and People v. Landgham (1970), 122 Ill. App.2d 9, 257 N.E.2d 484, and cited without discussion in People v. Roberson (1977), 46 Ill. App.3d 750, 361 N.E.2d 116. See also People v. Tankson (1980), 92 Ill. App.3d 328, 415 N.E.2d 1218.
For example, in Andrus, the court said:
"[N]o evidence was introduced at the hearing on the motion to suppress that defendant gave the second statement because he had made the first. Defendant cites People v. Raddatz, 91 Ill. App.2d 425, 235 N.E.2d 353 (1st Dist. 1968). But in Raddatz the defendant testified without contradiction that he gave a written statement after being given the Miranda warning solely because he believed that he had already confessed in a prior oral statement subsequently ruled inadmissible and that a second statement would make no difference. No such testimony appears in the instant case." (People v. Andrus (1976), 37 Ill. App.3d 533, 535, 346 N.E.2d 435, 436.)
And in Landgham, the court stated that:
"Contrary to Raddatz, defendant did not claim, nor did he show, that his decision to give the written confession was in any way influenced by what he had said orally. Therefore, defendant's contention that the written confession was tainted by the circumstances that produced the oral statements is without merit." People v. Landgham (1970), 122 Ill. App.2d 9, 20, 257 N.E.2d 484.
In Roberson, this court held that a written confession obtained from the defendant after proper Miranda warnings were given should not have been suppressed even though an earlier statement from the defendant was inadmissible for failure to accord proper warnings:
"The voluntariness of a statement or confession is to be determined from the totality of the circumstances. (People v. Prim, 53 Ill.2d 62, 70 (1972).) The fact that an earlier statement is inadmissible for failure to accord proper warnings does not necessarily make the subsequent statement which has been voluntarily reduced to writing after proper warnings have been given inadmissible. (People v. Andrus, 37 Ill. App.3d 533, 535 (1976); People v. Willis, 26 Ill. App.3d 518, 527 (1975).) If a subsequent statement is given after proper warnings and under circumstances assuring its voluntariness where the defendant has not requested that questioning be cut off (People v. Washington, 41 Ill. App.3d 475 (1976); cf. People v. Eason, 44 Ill. App.3d 308 (1976)), ...